(PC) Chavez v. Doe 1

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

GILBERTO CHAVEZ, 1:18-cv-01534-AWI-GSA-PC

Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION v. PROCEED ONLY AGAINST DEFENDANT CELINA SALINAS FOR DELIBERATE J. DOE #1, et al., INDIFFERENCE IN VIOLATION OF THE EIGHTH AMENDMENT, AND THAT ALL Defendants. OTHER CLAIMS AND DEFENDANTS BE DISMISSED OBJECTIONS DUE WITHIN 14 DAYS Gilberto Chavez (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On October 16, 2018, Plaintiff filed the Complaint commencing this action at the United States District Court for the Central District of California. (ECF No. 1.) On October 31, 2018, the case was transferred to this court. (ECF No. 4.) On February 20, 2020, Plaintiff filed the Second Amended Complaint. (ECF No. 26.) The Second Amended Complaint names as defendants Rosemary Ndoh (Warden), Celina Salinas (Kitchen Supervisor), and CDCR’s Medical Staff, (collectively “Defendants”), and brings claims for deliberate indifference under the Eighth Amendment, denial of medical care under the Eighth Amendment, due process under the Fourteenth Amendment, and negligence. On April 15, 2020, the court screened the Second Amended Complaint and ordered Plaintiff to either file a Third Amended Complaint or notify the court that he is willing to proceed only with the deliberate indifference claim against defendant Celina Salinas found cognizable by the court. (ECF No. 27.) On October 19, 2020, Plaintiff notified the court that he is willing to proceed only with the deliberate indifference claim against defendant Celina Salinas found cognizable by the court. (ECF No. 37.) Based on the foregoing, it is HEREBY RECOMMENDED that: 1. This action proceed only on Plaintiff’s claim against defendant Celina Salinas for deliberate indifference under the Eighth Amendment; 2. All remaining claims and defendants be dismissed from this action; 3. Plaintiff’s claims for violation of due process, denial of medical care, and negligence be dismissed from this action based on Plaintiff's failure to state any claims upon which relief may be granted; 4. Defendants Rosemary Ndoh (Warden) and CDCR’s Medical Staff be dismissed from this action based on Plaintiff’s failure to state any claims against them upon which relief may be granted; and 5. This case be referred back to the Magistrate Judge for further proceedings, including initiation of service of process. These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14) days after the date of service of these Findings and Recommendations, Plaintiff may file written objections with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). IT IS SO ORDERED.

Dated: October 22, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE